New Budget Law Shaping Up As Key Constitutional Issue

WASHINGTON — The major question about the constitutionality of the budget-balancing law now heading for the Supreme Court arises from the mechanism that is supposed to make it work.

That is the provision designed to insulate deficit reduction from elective politics by forcing huge unpopular spending cuts without requiring Congress to vote on them or the president to determine them.

In a federal court here on Friday, congressional critics of the new Gramm- Rudman legislation argued that this is unconstitutional on its face, because it removes these functions from elected representatives and assigns them to bureaucrats who are not answerable to the voters.

But defenders of the new law, designed to reduce the annual deficit from the current $212 billion to zero in five years, argue that the measure is a lawful delegation by Congress of its budget-making powers.

The case is shaping up as possibly the most far-reaching constitutional separation-of-powers issue before the federal court since the Waterage era.

So, there is potentially more at stake in the litigation than hundreds of billions of dollars in government spending. This dispute could be one of those involved, seemingly technical legal cases that come along every few years and touch the foundation stones of the nation`s system of government.

One of the forces behind the American Revolution and the adoption of the Constitution was the drive to get the government`s taxing and spending powers into the hands of elected representatives of the people, who would be politically accountable.

A special three-judge court took up the case Friday and it is likely to reach the Supreme Court by February. The Justice Department hopes for a final decision by June, but probably not before the first $11.7 billion cut takes effect March 1.

The case could have an important effect on the separation of powers among the Congress, the president, the judiciary and independent agencies Congress has created.

The central issue is whether the mechanism to force ``automatic`` reductions in the deficit until it reaches zero by 1991 violates the separation of powers by delegating to unelected officials, primarily the independent comptroller general, authority unprecedented in the United States to make huge cuts from congressional appropriations.

This most important provision was put into the law because for years Congress has been unwilling to vote, and the president has been unwilling to propose, the kinds of spending cuts both agree are necessary.

Although the government is the defendant in the suit, the Justice Department agrees with the plaintiffs that the mechanism violates the Constitution.

The department and the plaintiffs argue that the Constitution requires that major governmental policies be set by elected officials. The department says Congress could give such power only to the president or his subordinates.

The plaintiffs, including Rep. Mike Synar, D-Okla., 11 other House members and the National Treaury Employees Union, argue more broadly that Congress may not ``abdicate`` its authority over the purse to anybody, including the president.

Meanwhile, lawyers representing the Senate and the comptroller general vigorously defend the law as constitutional. Their briefs cite a long line of Supreme Court precedents upholding somewhat analogous grants of powers to independent agencies.

They also stress that the court has not struck down a congressional delegation of power to an ``officer of the United States`` in more than 50 years.